Adamson JA at [1]; Basten AJA and Sweeney J at [111]
Decision:
(1) Allow the appeal.
(2) Set aside the aggregate sentence imposed by Mahony SC DCJ on 10 February 2023 and the sentences imposed by Neilson DCJ on 24 February 2023 and in lieu thereof impose the following sentences:
(a) for the breach ADVO offence, a fixed term of 9 months commencing on 9 November 2019 and expiring on 8 August 2020
(b) for the s 319 offence, a sentence of 2 years imprisonment with a non-parole period 1 year 4 months, commencing on 9 February 2020, expiring on 8 February 2022, the non-parole period to expire on 8 June 2021
(c) for the offences for which the respondent was sentenced by Mahony SC DCJ, an aggregate sentence of 16 years’ imprisonment with a non-parole period of 11 years, 6 months commencing on 9 November 2020 and expiring on 8 May 2032 and a balance of term of 4 years, 6 months expiring on 8 November 2036.
(3) The overall effective sentence is 17 years’ imprisonment commencing on 9 November 2019 and expiring on 8 November 2036 with a non-parole period of 12 years 6 months expiring on 8 May 2032.
Catchwords:
APPEALS — CRIME — Crown appeal against sentence — manifest inadequacy — aggregate sentence in respect of 19 offences of indecent assault, aggravated sexual assault of daughter and common assault — two sentences for breach of Apprehended Domestic Violence Order and soliciting mother to ask complainant to withdraw complaint (doing an act with intent to pervert the course of justice) — whether sentences unreasonable or plainly unjust — determination of appropriate sentence — residual discretion
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
R v RJ [2023] NSWCCA 273
Case
[2023] NSWCCA 273
Decision Date
CaseChat Overview and Summary
In the case of R v RJ, the appellant appealed against the aggregate sentence imposed for a series of offences, including 19 instances of indecent assault and aggravated sexual assault against his daughter, as well as common assault. Additionally, the sentence addressed two instances of breaching an Apprehended Domestic Violence Order and soliciting the victim's mother to persuade the complainant to withdraw her complaint, an act intended to pervert the course of justice. The Crown filed an appeal against the sentence imposed, arguing it was manifestly inadequate. The central legal issues before the court were whether the sentences imposed were unreasonable or plainly unjust, and if so, what the appropriate sentence should be.
The court considered the gravity of the offences, the appellant's conduct, and the principles governing sentencing. It examined the cumulative impact of the offences, the appellant's history, and the need for deterrence and denunciation. The court also assessed the sentences imposed on the individual offences and whether they were appropriate in the circumstances. After evaluating the arguments, the court determined that the aggregate sentence was indeed manifestly inadequate and, therefore, plainly unjust. The court exercised its residual discretion to redetermine the appropriate sentence, taking into account the totality of the offending and the need to adequately address the appellant's conduct.
The court subsequently imposed a new aggregate sentence, considering the totality of the offending, the need for general and specific deterrence, and the protection of the community. The new sentence reflected a more proportionate response to the seriousness of the crimes committed. The court's decision emphasised the importance of ensuring that sentences imposed are just and reflect the gravity of the offending. The final orders of the court involved the imposition of a new aggregate sentence for the appellant, which was deemed appropriate in light of the circumstances and legal principles considered.